Annotated Lecture Transcript

You already know the hierarchy of these sources because I’ve
mentioned it numerous times throughout this course.

ØConstitutional Law is the highest;

ØStatutory Law is second highest; and

ØAdministrative Law is the lowest.

What happens if a statute conflicts with the Constitution?

Of course, the Constitution wins.

This is because of the Supremacy Clause of Article VI, cl. 2
of the United States Constitution.[1]

Pretty simple, right?

So why do I need to bore you with a full section on priority
of blackletter primary authority?

Because—like most things in the legal field—this basic
understanding of the hierarchy becomes a bit more nuanced when applied by
judges in practice.

In this section, I’m going to quickly run through a few
important concepts that explain why constitutional law is not the most important
source of law in U.S. intelligence law despite being the “supreme law of the
land.”

First of all, there are canons of constitutional and
statutory interpretation that affect how often constitutional law issues are
decided by courts.

For example, there is an important doctrine called the “Doctrine
of Constitutional Avoidance”—it’s also sometimes referred to as the “Doctrine
of Constitutional Doubt.”

This doctrine is a self-imposed rule of judicial restraint—imposed
by judges on themselves.

It stands for the principle that the courts should respect
the legislature’s will whenever possible and avoid issuing binding judicial
decisions on the constitutionality of a statute if the dispute can be resolved
on other grounds.[2]

Judges should only use the Constitution to overrule an act
of Congress as a last resort.

Proponents of the doctrine believe that when constitutional
issues are presented in a case, judges should always attempt to decide the case
on statutory or other grounds before taking what they consider to be the more “drastic”
action of issuing a constitutional decision because constitutional decisions
are binding on the entire nation and generally have much broader implications
that extend far beyond what is necessary to resolve the legal dispute presented
by the case under consideration.[3]

Proponents claim this leads to greater stability and
predictability of the law.

They also feel this approach is more in line with principles
of democracy, by respecting the primary role of elected representatives in the
political branches of our government rather than allowing individual judges to
countermand the will of the majority of our elected legislature by fiat.

Critics of the doctrine, however, point out that excessive
reluctance by judges to decide difficult constitutional questions leaves the
rights of American minorities poorly defended against the legislative abuses
that so often stem from base majoritarian prejudices and the vicissitudes of public
opinion.

Some critics see it as a form of judicial cowardice at best,
and a dereliction of duty at worst, when judges work so hard to avoid resolving
critical constitutional questions by first twisting logic to interpret
potentially unconstitutional statutory language in any way that will allow them
to dispose of the case without actually resolving the underlying constitutional
ambiguity that spawned the litigation.

The most thorough statement of the Doctrine of Constitutional
Avoidance comes from Justice Brandeis’s concurrence in Ashander v. Tennessee
Valley Authority.[4]

In that opinion, Justice Brandeis highlighted the historical
tradition and vital importance of judicial restraint when exercising the power
to overturn duly enacted legislation by Congress on constitutional grounds.[5]

He reviewed the relevant jurisprudence and distilled their
holdings into 7 scenarios when the Court should abstain from invalidating a
statute:[6]

They are:

1.“The
Court will not pass upon the constitutionality of legislation in a friendly,
nonadversary, proceeding, declining because to decide such questions "is
legitimate only in the last resort, and as a necessity in the determination of
real, earnest and vital controversy between individuals.

It never was the
thought that, by means of a friendly suit, a party beaten in the legislature
could transfer to the courts an inquiry as to the constitutionality of the
legislative act.”[7]

2.“The
Court will not “anticipate a question of constitutional law in advance of the
necessity of deciding it.”[8]

“It is not the
habit of the Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.”[9]

3.“The
Court will not ‘formulate a rule of constitutional law broader than is required
by the precise facts to which it is to be applied.’”[10]

4.“The
Court will not pass upon a constitutional question, although properly presented
by the record, if there is also present some other ground upon which the case
may be disposed of.

This rule has found
most varied application.

Thus, if a case can
be decided on either of two grounds, one involving a constitutional question,
the other a question of statutory construction or general law, the Court will
decide only the latter.”[11]

“Appeals from the
highest court of a state challenging its decision of a question under the
Federal Constitution are frequently dismissed because the judgment can be
sustained on an independent state ground.”[12]

5.“The
Court will not pass upon the validity of a statute upon complaint of one who
fails to show that he is injured by its operation.[13]

Among the many
applications of this rule, none is more striking than the denial of the right
of challenge to one who lacks a personal or property right.

Thus, the challenge
by a public official interested only in the performance of his official duty
will not be entertained.”[14]

“In Fairchild v.
Hughes, 258 U. S. 126, the Court affirmed the dismissal of a suit brought by a
citizen who sought to have the Nineteenth Amendment declared unconstitutional.

In Massachusetts v.
Mellon, 262 U. S. 447, the challenge of the federal Maternity Act was not
entertained, although made by the Commonwealth on behalf of all its citizens.”[15]

6.“The
Court will not pass upon the constitutionality of a statute at the instance of
one who has availed himself of its benefits.”[16]

7.“When
the validity of an act of the Congress is drawn in question, and even if a
serious doubt of constitutionality is raised, it is a cardinal principle that
this Court will first ascertain whether a construction of the statute is fairly
possible by which the question may be avoided.”[17]

§“where an otherwise acceptable construction of a statute would
raise serious constitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly contrary to the intent
of Congress. . . .

§‘The elementary rule is that every reasonable construction must
be resorted to, in order to save a statute from unconstitutionality.’

§This approach not only reflects the prudential concern that
constitutional issues not be needlessly confronted, but also recognizes that
Congress, like this Court, is bound by and swears an oath to uphold the
Constitution.”[18]

oThis grave
doubt as to the constitutionality of a particular statutory interpretation must
be held by a majority of the Court.[19]

ØReasonableness through Interpolation: Well, what happens
if the text isn’t malleable enough on its face to allow the necessary
interpretation?

oWell, then you
move to Plan B.

oIf
“interpretation” fails, courts turn to “interpolation.”

oJudges will
inject a phantom “reasonableness” requirement into the problematic provision.

oThis has the
effect of tempering unconstitutionally broad authority so it can be used by the
government only in constitutionally permissible ways.

oZadvydas v.
Davis (2001): A great example of this comes from a pre-9/11 case called Zadvydas
v. Davis.[20]

§That case involved a statute that gave the INS the power to
detain aliens who were under a final order of removal and awaiting deportation.

§Ordinarily, the statute allowed the INS to detain a removable
alien for up to 90 days leading up to actual deportation.

§In the case of dangerous aliens, however, the statute also
allowed the INS to detain them beyond this 90-day period if there were
difficulties effecting the deportation.

§Well, a few cases came up where aliens had been detained but were
unable to be deported because no country was willing to accept them.

§This led to a few rare situations where the broad statutory
authority to detain an alien beyond the 90-day removal period resulted in an
unintended license to imprison non-removable aliens indefinitely without trial.

§To avoid the serious due process implications of indefinite
detention without trial, the Supreme Court read in a “reasonable time”
limitation into the power granted to the INS by the statute.[21]

§The power to detain aliens beyond the 90-day removal period was
limited to a period of time reasonably necessary to effect the deportation.

§In the interests of uniformity, the Court held this reasonable
time period to be 6-months.[22]

§So, the INS was understood to have the power to detain a
removable alien prior to deportation for up to 6 months beyond the initial
90-day removal period, but if it became clear that deportation was not
reasonably foreseeable after that time had elapsed, then continued detention by
INS would be presumed to be unreasonable and therefore no longer authorized by
the statute.[23]

§This presumption could be rebutted by the agency, but absent such
a showing, they would be required to release the alien back into the general
population.

§An individual’s liberty was seen as more important than the
government’s interest in preventing speculative dangers posed by a person they’d
classified as “dangerous.”

§You can tell this is a pre-9/11 case.

§Although this case was decided in 2001, the opinion was issued on
June 28th—less than 3 months before individual liberty changed
forever on 9/11.

Footnotes

[1]U.S. Const., art. VI, cl. 2 (“This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall
be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”).

[2]See Zadvydas v.
Davis, 533 U.S. 678, 689 (2001) (“It is a cardinal principle" of statutory
interpretation, however, that when an Act of Congress raises "a serious
doubt" as to its constitutionality, "this Court will first ascertain
whether a construction of the statute is fairly possible by which the question
may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 76 L. Ed. 598, 52 S.
Ct. 285 (1932); see also United States v. X-Citement Video, Inc., 513 U.S. 64,
78, 130 L. Ed. 2d 372, 115 S. Ct. 464 (1994); United States v. Jin Fuey Moy,
241 U.S. 394, 401, 60 L. Ed. 1061, 36 S. Ct. 658 (1916); cf. Almendarez-Torres
v. United States, 523 U.S. 224, 238, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998)
(construction of statute that avoids invalidation best reflects congressional
will). We have read significant limitations into other immigration statutes in
order to avoid their constitutional invalidation. See United States v.
Witkovich, 353 U.S. 194, 195, 202, 1 L. Ed. 2d 765, 77 S. Ct. 779 (1957)
(construing a grant of authority to the Attorney General to ask aliens whatever
questions he "deems fit and proper" as limited to questions
"reasonably calculated to keep the Attorney General advised regarding the
continued availability for departure of aliens whose deportation is
overdue"). For similar reasons, we read an implicit limitation into the
statute before us.”).

[3]See Ashwander v.
Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (J. Brandeis, concurring)
(“The Court will not pass upon a constitutional question, although properly
presented by the record, if there is also present some other ground upon which
the case may be disposed of. [...] Thus, if a case can be decided upon two
grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the
latter.”); see alsoYule Kim
& George Costello, Congressional Research Serv., Statutory Interpretation:
General Principles and Recent Trends (2008), available athttps://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf
(“The doctrine of ‘constitutional doubt’ requires courts to construe statutes,
‘if fairly possible, so as to avoid not only the conclusion that it is
unconstitutional but also grave doubts upon that score.’ Citing: United
States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916); Almendarez-Torres v. United
States, 523 U.S. 224, 237-38 (1998); Jones v. United States, 529 U.S. 848, 857
(2000).”).

[5] Specifically, Justice
Brandeis stated that “[t]he Court has frequently called attention to the ‘great
gravity and delicacy’ of its function in passing upon the validity of an act of
Congress, and has restricted exercise of this function by rigid insistence that
the jurisdiction of federal courts is limited to actual cases and
controversies, and that they have no power to give advisory opinions. On this
ground, it has in recent years ordered the dismissal of several suits
challenging the constitutionality of important acts of Congress. […] The Court
developed, for its own governance in the cases confessedly within its
jurisdiction, a series of rules under which it has avoided passing upon a large
part of all the constitutional questions pressed upon it for decision.”
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345 (1936) (Brandeis,
J., concurring) (internal citations omitted). He then proceeded to list the 7
rules composing the Constitutional Avoidance Doctrine that are quoted verbatim
in the text of the script. See Id. at 345-47.

[19]SeeYule Kim & George Costello, Congressional
Research Serv., Statutory Interpretation: General Principles and Recent Trends
(2008), available athttps://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf
(“‘Grave doubt’ as to constitutionality does not arise simply because a Court
minority — even a minority of four Justices — believes a statute is
unconstitutional; rather, a Court majority must ‘gravely . . . doubt that the
statute is constitutional.’” Citing: Almendarez-Torres v. United States,
523 U.S. 224, 239 (1998) (citing Rust v. Sullivan, 500 U.S. 173, 191
(1991).”).

[20]See Zadvydas v.
Davis, 533 U.S. 678 (2001) (Facts from Official Syllabus: “After a final
removal order is entered, an alien ordered removed is held in custody during a
90-day removal period. If the alien is not removed in those 90 days, the
post-removal-period detention statute authorizes further detention or
supervised release, subject to administrative review. Kestutis Zadvydas,
petitioner in No. 99-7791 -- a resident alien born, apparently of Lithuanian
parents, in a German displaced persons camp -- was ordered deported based on
his criminal record. Germany and Lithuania refused to accept him because he was
not a citizen of their countries; efforts to send him to his wife's native
country also failed. When he remained in custody after the removal period
expired, he filed a habeas action under 28 U.S.C. § 2241. The District Court
granted the writ, reasoning that, because the Government would never remove
him, his confinement would be permanent, in violation of the Constitution. In
reversing, the Fifth Circuit concluded that Zadvydas' detention did not violate
the Constitution because eventual deportation was not impossible, good faith
efforts to remove him continued, and his detention was subject to
administrative review. Kim Ho Ma, respondent in No. 00-38, is a resident alien
born in Cambodia who was ordered removed based on his aggravated felony
conviction. When he remained in custody after the removal period expired, he
filed a § 2241 habeas petition. In ordering his release, the District Court
held that the Constitution forbids post-removal-period detention unless there
is a realistic chance that an alien will be removed, and that no such chance
existed here because Cambodia has no repatriation treaty with the United
States. The Ninth Circuit affirmed, concluding that detention was not
authorized for more than a reasonable time beyond the 90-day period, and that,
given the lack of a repatriation agreement, that time had expired.”).

[21]See Zadvydas v.
Davis, 533 U.S. 678, 689 (2001) (“In our view, the statute, read in light of
the Constitution's demands, limits an alien's post-removal-period detention to
a period reasonably necessary to bring about that alien's removal from the
United States. It does not permit indefinite detention.”).

[22]See Zadvydas v.
Davis, 533 U.S. 678, 701 (2001) (“Consequently, for the sake of uniform
administration in the federal courts, we recognize that period. After this
6-month period, once the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut that showing. And for
detention to remain reasonable, as the period of prior post-removal confinement
grows, what counts as the "reasonably foreseeable future" conversely
would have to shrink. This 6-month presumption, of course, does not mean that
every alien not removed must be released after six months. To the contrary, an
alien may be held in confinement until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future.”).

[23]See Zadvydas v.
Davis, 533 U.S. 678 (2001) (Holding 2 from Official Syllabus: “The
post-removal-period detention statute, read in light of the Constitution's
demands, implicitly limits an alien's detention to a period reasonably
necessary to bring about that alien's removal from the United States, and does
not permit indefinite detention. Pp. 8-19. (a) A statute permitting indefinite
detention would raise serious constitutional questions. Freedom from
imprisonment lies at the heart of the liberty protected by the Due Process
Clause. Government detention violates the Clause unless it is ordered in a
criminal proceeding with adequate procedural safeguards or a special
justification outweighs the individual's liberty interest. The instant
proceedings are civil and assumed to be nonpunitive, and the Government
proffers no sufficiently strong justification for indefinite civil detention
under this statute. The first justification -- preventing flight -- is weak or
nonexistent where removal seems a remote possibility. Preventive detention
based on the second justification -- protecting the community -- has been
upheld only when limited to specially dangerous individuals and subject to
strong procedural protections. When preventive detention is potentially
indefinite, this dangerousness rationale must also be accompanied by some other
special circumstance, such as mental illness, that helps to create the danger.
The civil confinement here is potentially permanent, and once the flight risk
justification evaporates, the only special circumstance is the alien's removable
status, which bears no relation to dangerousness. Moreover, the sole
procedural protections here are found in administrative proceedings, where the
alien bears the burden of proving he is not dangerous, without (according to
the Government) significant later judicial review. The Constitution may well
preclude granting an administrative body unreviewable authority to make
determinations implicating fundamental rights. Pp. 8-12.”).